Abortion: Difference between revisions
Created page with "{{Author |author = Hadi Naqavi |compiler = }} '''Abortion''' is an ancient issue that has found new instances in the modern world. Today, the health and sickness or defect and perfection of a fetus can be identified, and we are aware of the dangers that carrying a fetus can pose to the mother. It is even possible to grow or maintain a fetus outside the mother's womb. Maintaining a fetus resulting from rape or an illicit relationship is also a matter that has been a subj..." |
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Human abortion has been a question and an affliction for society since the past. In Islam, intentional abortion is forbidden (*haram*), and Shia jurists have no disagreement on this ruling. Various situations of abortion, such as the parents' consent, direct action or causation in the abortion, and whether or not the soul has been ensouled, do not affect the aforementioned ruling. However, the population explosion, limited resources, women's rights and freedoms, human rights, interests of states, social welfare, and the high number of illegitimate or unwanted children are tangibly related to the issue of abortion. These kinds of issues and global statistics on abortion have doubled the importance of addressing this topic. The advancement of medical tools and the possibility of diagnosing fetal diseases brought forth the issue of preserving or aborting a defective fetus, and [[artificial insemination]] also presented jurists with the dilemma of aborting or maintaining a fetus developed in laboratory conditions. | Human abortion has been a question and an affliction for society since the past. In Islam, intentional abortion is forbidden (*haram*), and Shia jurists have no disagreement on this ruling. Various situations of abortion, such as the parents' consent, direct action or causation in the abortion, and whether or not the soul has been ensouled, do not affect the aforementioned ruling. However, the population explosion, limited resources, women's rights and freedoms, human rights, interests of states, social welfare, and the high number of illegitimate or unwanted children are tangibly related to the issue of abortion. These kinds of issues and global statistics on abortion have doubled the importance of addressing this topic. The advancement of medical tools and the possibility of diagnosing fetal diseases brought forth the issue of preserving or aborting a defective fetus, and [[artificial insemination]] also presented jurists with the dilemma of aborting or maintaining a fetus developed in laboratory conditions. | ||
Sayyid Abd al-A'la Sabzevari considered the general prohibitions on killing as the reason for the prohibition of abortion;<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 112.</ref> for example, verse 151 of Surah al-An'am: "And do not kill the soul which Allah has forbidden, except by right." From | Sayyid Abd al-A'la Sabzevari considered the general prohibitions on killing as the reason for the prohibition of abortion;<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 112.</ref> for example, verse 151 of Surah al-An'am: "And do not kill the soul which Allah has forbidden, except by right." From Naser Makarem Shirazi's perspective, this verse can be used for the prohibition of abortion only if the creation of the fetus is complete and the soul has been breathed into it, so that killing is applicable to it legally and customarily. Therefore, the stages before that are not included in the said verse.<ref>Makarem Shirazi, *Buhuth Fiqhiyyah Hammah*, p. 286.</ref> Also, narrations from the Infallible Imams, such as the reliable narration (*muwaththaqah*) of Ishaq ibn 'Ammar from Imam al-Kazim (a), which Shaykh al-Saduq has narrated in his book *Man La Yahduruhu al-Faqih*.<ref>Al-Saduq, *Man La Yahduruhu al-Faqih*, vol. 4, p. 171.</ref> | ||
==Defective or Sick Fetus== | ==Defective or Sick Fetus== | ||
There are two opinions on the ruling of aborting a defective or disabled fetus; | There are two opinions on the ruling of aborting a defective or disabled fetus; | ||
# A group of jurists, such as | # A group of jurists, such as [[Sayyid Abu al-Qasim Khoei]] and [[Sayyid Ruhollah Musavi Khomeini]], have specified that aborting a defective fetus is absolutely forbidden.<ref>For example: Khoei, and Tabrizi, *Fiqh al-A'dhar al-Shar'iyyah wa al-Masa'il al-Tibbiyyah*, p. 150; Khomeini, *Istifta'at*, vol. 3, p. 291; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Montazeri, *Ahkam-i Pizishki*, p. 103.</ref> The authors of *Mawsu'at al-Fiqh al-Islami* have stated the reason for this fatwa to be the general applicability of the evidence prohibiting abortion, especially after the ensoulment of the soul, because it is an instance of killing a human.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, pp. 396-397.</ref> | ||
# Some jurists, like Fazel Lankarani, believe that aborting a defective fetus is permissible only if three conditions are met: (1) it is before the ensoulment of the soul and it has not become a complete human. (2) They are certain that the fetus is defective and flawed. (3) Maintaining it would cause severe hardship (*'usr wa haraj*) for the parents. The reason for the second opinion is the precedence of the evidence negating hardship for the parents over the evidence prohibiting abortion.<ref>Fazel Lankarani, *Jami' al-Masa'il*, vol. 2, p. 394; Makarem Shirazi, *Ahkam-i Pizishki*, p. 93; Khamenei, *Ajwibat al-Istifta'at*, p. 280.</ref> | # Some jurists, like [[Mohammad Fazel Lankarani]], believe that aborting a defective fetus is permissible only if three conditions are met: (1) it is before the ensoulment of the soul and it has not become a complete human. (2) They are certain that the fetus is defective and flawed. (3) Maintaining it would cause severe hardship (*'usr wa haraj*) for the parents. The reason for the second opinion is the precedence of the evidence negating hardship for the parents over the evidence prohibiting abortion.<ref>Fazel Lankarani, *Jami' al-Masa'il*, vol. 2, p. 394; Makarem Shirazi, *Ahkam-i Pizishki*, p. 93; Khamenei, *Ajwibat al-Istifta'at*, p. 280.</ref> | ||
===Maintenance of IVF Children=== | ===Maintenance of IVF Children=== | ||
Regarding the [[IVF children|embryo developed in a test tube]], Makarem Shirazi also specifies that its maintenance is not obligatory as long as it has not taken the form of a living human.<ref>Makarem Shirazi, *Ahkam-i Pizishki*, p. 88.</ref> The reason for this ruling has not been specified. | Regarding the [[IVF children|embryo developed in a test tube]], Makarem Shirazi also specifies that its maintenance is not obligatory as long as it has not taken the form of a living human.<ref>Makarem Shirazi, *Ahkam-i Pizishki*, p. 88.</ref> The reason for this ruling has not been specified. | ||
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# According to the fatwa of most contemporary jurists, abortion of a fetus is forbidden, even if it is the result of adultery (*zina*).<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253; Iravani, *Durus Tamhidiyyah fi al-Fiqh al-Istidlali*, vol. 3, p. 309; Khamenei, *Ajwibat al-Istifta'at*, p. 280; Hakim, *Murshid al-Mughtarib*, p. 355; Golpayegani, (if at least one of the parties to the adultery is a Muslim) *Mukhtasar al-Ahkam*; p. 137.</ref> The argument of some of these jurists is the general applicability of the evidence prohibiting abortion, such as the reliable narration of 'Ammar,<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253.</ref> and also that it is considered an instance of killing a soul (*qatl al-nafs*).<ref>Hakim, *Murshid al-Mughtarib*, p. 355.</ref> | # According to the fatwa of most contemporary jurists, abortion of a fetus is forbidden, even if it is the result of adultery (*zina*).<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253; Iravani, *Durus Tamhidiyyah fi al-Fiqh al-Istidlali*, vol. 3, p. 309; Khamenei, *Ajwibat al-Istifta'at*, p. 280; Hakim, *Murshid al-Mughtarib*, p. 355; Golpayegani, (if at least one of the parties to the adultery is a Muslim) *Mukhtasar al-Ahkam*; p. 137.</ref> The argument of some of these jurists is the general applicability of the evidence prohibiting abortion, such as the reliable narration of 'Ammar,<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253.</ref> and also that it is considered an instance of killing a soul (*qatl al-nafs*).<ref>Hakim, *Murshid al-Mughtarib*, p. 355.</ref> | ||
# [[Mirza Jawad Tabrizi]] permits the abortion of an illegitimate fetus under three conditions: (1) it is the result of rape, (2) maintaining the fetus would cause severe hardship for her, (3) and the abortion is performed before the ensoulment of the soul.<ref>Tabrizi, *Sirat al-Najat*, vol. 9, p. 273.</ref> Mohammad Ishaq Fayyadh has also sided with the fatwa of permissibility, removing the first condition.<ref>Fayyadh, *Tawdih al-Masa'il*, p. 744.</ref> Although the reasoning for the fatwa of Tabrizi and Fayyadh has not been specified, according to jurisprudential principles, the implication of the precedence of the evidence negating hardship over the evidence prohibiting abortion can explain part of the reasoning for this fatwa. | # [[Mirza Jawad Tabrizi|Jawad Tabrizi]] permits the abortion of an illegitimate fetus under three conditions: (1) it is the result of rape, (2) maintaining the fetus would cause severe hardship for her, (3) and the abortion is performed before the ensoulment of the soul.<ref>Tabrizi, *Sirat al-Najat*, vol. 9, p. 273.</ref> Mohammad Ishaq Fayyadh has also sided with the fatwa of permissibility, removing the first condition.<ref>Fayyadh, *Tawdih al-Masa'il*, p. 744.</ref> Although the reasoning for the fatwa of Tabrizi and Fayyadh has not been specified, according to jurisprudential principles, the implication of the precedence of the evidence negating hardship over the evidence prohibiting abortion can explain part of the reasoning for this fatwa. | ||
Tabrizi and [[Sayyid Abd al-A'la Sabzevari|Sabzevari]] permit the abortion of an illegitimate fetus before the ensoulment of the soul only in a state of necessity for the mother, such as the fear of losing her own life. Tabrizi has introduced the fear of family dishonor and the loss of their good name as an example of necessity.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327; Khoei and Tabrizi, *Fiqh al-A'dhar al-Shar'iyyah wa al-Masa'il al-Tibbiyyah (al-Muhashsha)*, p. 149.</ref> Sabzevari, in his reasoning, considers this issue to be a case of choosing between the more important (*ahamm*, preserving the mother's life) and the important (*muhimm*, preserving the illegitimate fetus) and considers preserving the mother's life to be precedent from a customary perspective, especially in cases where the mother has repented for her action.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327.</ref> | Tabrizi and [[Sayyid Abd al-A'la Sabzevari|Sabzevari]] permit the abortion of an illegitimate fetus before the ensoulment of the soul only in a state of necessity for the mother, such as the fear of losing her own life. Tabrizi has introduced the fear of family dishonor and the loss of their good name as an example of necessity.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327; Khoei and Tabrizi, *Fiqh al-A'dhar al-Shar'iyyah wa al-Masa'il al-Tibbiyyah (al-Muhashsha)*, p. 149.</ref> Sabzevari, in his reasoning, considers this issue to be a case of choosing between the more important (*ahamm*, preserving the mother's life) and the important (*muhimm*, preserving the illegitimate fetus) and considers preserving the mother's life to be precedent from a customary perspective, especially in cases where the mother has repented for her action.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327.</ref> | ||
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The opinions of jurists when the continuation of pregnancy poses a mortal danger to the mother, according to a specialized and trusted physician, differ before and after the ensoulment of the soul; | The opinions of jurists when the continuation of pregnancy poses a mortal danger to the mother, according to a specialized and trusted physician, differ before and after the ensoulment of the soul; | ||
===Before the Ensoulment of the Soul=== | ===Before the Ensoulment of the Soul=== | ||
Contemporary jurists have permitted the abortion of a fetus before the ensoulment of the soul in the said situation.<ref>Khoei, *Sirat al-Najat*, vol. 1, p. 344; Golpayegani, *Irshad al-Sa'il*, p. 173; Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253; Khomeini, *Tawdih al-Masa'il*, vol. 2, p. 945; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Makarem Shirazi, *Ahkam-i Pizishki*, p. 91; Khamenei, *Ajwibat al-Istifta'at*, p. 279; Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 64; Tabrizi, *Sirat al-Najat*, vol. 1, p. 333.</ref> This is because, based on well-known principles, the evidence of necessity (*idtirar*, the mother's necessity to abort) and the negation of harm (*la darar*, keeping the fetus is harmful to the mother) conflict with the evidence prohibiting abortion. However, the implication of the precedence of the evidence of necessity and negation of harm is the permissibility of abortion.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 399.</ref> Indeed, from the perspective of [[Mohammad Asif | Contemporary jurists have permitted the abortion of a fetus before the ensoulment of the soul in the said situation.<ref>Khoei, *Sirat al-Najat*, vol. 1, p. 344; Golpayegani, *Irshad al-Sa'il*, p. 173; Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253; Khomeini, *Tawdih al-Masa'il*, vol. 2, p. 945; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Makarem Shirazi, *Ahkam-i Pizishki*, p. 91; Khamenei, *Ajwibat al-Istifta'at*, p. 279; Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 64; Tabrizi, *Sirat al-Najat*, vol. 1, p. 333.</ref> This is because, based on well-known principles, the evidence of necessity (*idtirar*, the mother's necessity to abort) and the negation of harm (*la darar*, keeping the fetus is harmful to the mother) conflict with the evidence prohibiting abortion. However, the implication of the precedence of the evidence of necessity and negation of harm is the permissibility of abortion.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 399.</ref> Indeed, from the perspective of [[Mohammad Asif Mohseni Qandahari]], abortion is obligatory, and the reason for it is the necessity of prioritizing the more important (preserving the mother's life) over the important (preserving the unensouled fetus).<ref>Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 64.</ref> | ||
===After the Ensoulment of the Soul=== | ===After the Ensoulment of the Soul=== | ||
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====Abortion with Third-Party Intervention==== | ====Abortion with Third-Party Intervention==== | ||
Regarding abortion with the intervention of a third party, most contemporary jurists, like Tabataba'i Yazdi, the author of *Al-'Urwah*, and many jurists who have written commentaries on that book, consider abortion to be forbidden for the third party.<ref>Tabataba'i Yazdi, *Al-'Urwah al-Wuthqa*, vol. 2, p. 118; Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 254; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Khamenei, *Ajwibat al-Istifta'at*, p. 279.</ref> | Regarding abortion with the intervention of a third party, most contemporary jurists, like Tabataba'i Yazdi, the author of *Al-'Urwah*, and many jurists who have written commentaries on that book, consider abortion to be forbidden for the third party.<ref>Tabataba'i Yazdi, *Al-'Urwah al-Wuthqa*, vol. 2, p. 118; Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 254; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Khamenei, *Ajwibat al-Istifta'at*, p. 279.</ref> | ||
Sayyid Abd al-A'la Sabzevari, in justifying this ruling, has said that there is no religious preference for saving the mother's life over the fetus's, and vice versa, and in this situation, one must wait for the divine decree.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 254.</ref> But Mohseni Qandahari, in the said scenario, has permitted the killing of the fetus by a physician for the purpose of preserving the mother's life.<ref>Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 65.</ref> | Sayyid Abd al-A'la Sabzevari, in justifying this ruling, has said that there is no religious preference for saving the mother's life over the fetus's, and vice versa, and in this situation, one must wait for the divine decree.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 254.</ref> But Mohammad Asif Mohseni Qandahari, in the said scenario, has permitted the killing of the fetus by a physician for the purpose of preserving the mother's life.<ref>Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 65.</ref> | ||
====Abortion by the Mother's Agency==== | ====Abortion by the Mother's Agency==== | ||
If a mother wants to abort her fetus to save her own life, [[Sayyid Abul-Qasim Khoei]] and some other jurists consider this act permissible.<ref>Khoei, *Sirat al-Najat*, vol. 1, p. 332; Fazel Lankarani, *Ahkam-i Pizishkan va Bimaran*, vol. 1, pp. 114-115; Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*; vol. 1, p. 65.</ref> | If a mother wants to abort her fetus to save her own life, [[Sayyid Abul-Qasim Khoei]] and some other jurists consider this act permissible.<ref>Khoei, *Sirat al-Najat*, vol. 1, p. 332; Fazel Lankarani, *Ahkam-i Pizishkan va Bimaran*, vol. 1, pp. 114-115; Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*; vol. 1, p. 65.</ref> | ||
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The obligation of blood money on the one who commits a forbidden abortion is not a matter of dispute.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 402.</ref> In intentional and quasi-intentional abortion, the blood money at all its stages is the responsibility of the killer, and in the case of accidental abortion, it is the responsibility of the *'aqilah* (male paternal relatives), and on this issue as well, there is no disagreement among Shia jurists.<ref>Fazel Lankarani, *Tafsil al-Shari'ah, al-Diyat*, p. 288.</ref> | The obligation of blood money on the one who commits a forbidden abortion is not a matter of dispute.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 402.</ref> In intentional and quasi-intentional abortion, the blood money at all its stages is the responsibility of the killer, and in the case of accidental abortion, it is the responsibility of the *'aqilah* (male paternal relatives), and on this issue as well, there is no disagreement among Shia jurists.<ref>Fazel Lankarani, *Tafsil al-Shari'ah, al-Diyat*, p. 288.</ref> | ||
And where abortion is permissible, some, like [[Hossein-Ali Montazeri|Montazeri]], [[Mohammad | And where abortion is permissible, some, like [[Hossein-Ali Montazeri|Montazeri]], [[Mohammad Fazel Lankarani]], and Fayyadh, also consider the payment of blood money to be obligatory.<ref>Montazeri, *Ahkam-i Pizishki*, p. 106; Fazel Lankarani, *Ahkam-i Pizishkan va Bimaran*, p. 117; Fayyadh, *Minhaj al-Salihin*, vol. 3, p. 441.</ref> [[Mohammad Ishaq Fayyadh]], regarding the abortion of an illegitimate fetus by relying on the negation of hardship, says: With the falling away of the prescriptive prohibition, there is no reason for the blood money to be waived from the legally responsible person.<ref>Fayyadh, *Minhaj al-Salihin*, vol. 3, p. 441.</ref> Therefore, it is included in the reliable narration of Zarif from the Commander of the Faithful (a)<ref>Hurr al-'Amili, *Wasa'il al-Shi'a*, vol. 29, abwab diyat al-a'da', bab 19, h. 1.</ref> and the generalities and applicability of the evidence establishing blood money.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327.</ref> | ||
===Expiation (*Kaffarah*)=== | ===Expiation (*Kaffarah*)=== | ||
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==View of Contemporary Sunni Jurists== | ==View of Contemporary Sunni Jurists== | ||
Past Sunni jurists unanimously forbid abortion after the ensoulment of the soul.<ref>Al-Najimi, *Al-Ijhad: Ahkamuhu wa Hududuhu fi al-Shari'ah al-Islamiyyah wa al-Qanun al-Wad'i*, p. 33.</ref> They unanimously agree that the time of ensoulment is after the completion of four months.<ref>Al-Najimi, *Al-Ijhad: Ahkamuhu wa Hududuhu fi al-Shari'ah al-Islamiyyah wa al-Qanun al-Wad'i*, p. 33.</ref> [[Wahbah al-Zuhayli]] considers the prohibition of abortion without an excuse after four months to be a matter of agreement among Sunni scholars – contemporary and past.<ref>Al-Zuhayli, *Al-Fiqh al-Islami wa Adillatuh*, vol. 4, p. 2646.</ref> However, some contemporary Sunni jurists permit intentional abortion before forty days, even without an excuse, and after forty days, they only permit it with an excuse.<ref>Qamashi, "Intentional Abortion from the Sunni Perspective," p. 386.</ref> | Past Sunni jurists unanimously forbid abortion after the ensoulment of the soul.<ref>Al-Najimi, *Al-Ijhad: Ahkamuhu wa Hududuhu fi al-Shari'ah al-Islamiyyah wa al-Qanun al-Wad'i*, p. 33.</ref> They unanimously agree that the time of ensoulment is after the completion of four months.<ref>Al-Najimi, *Al-Ijhad: Ahkamuhu wa Hududuhu fi al-Shari'ah al-Islamiyyah wa al-Qanun al-Wad'i*, p. 33.</ref> [[Wahbah al-Zuhayli|Wahbah Mustafa al-Zuhayli]] considers the prohibition of abortion without an excuse after four months to be a matter of agreement among Sunni scholars – contemporary and past.<ref>Al-Zuhayli, *Al-Fiqh al-Islami wa Adillatuh*, vol. 4, p. 2646.</ref> However, some contemporary Sunni jurists permit intentional abortion before forty days, even without an excuse, and after forty days, they only permit it with an excuse.<ref>Qamashi, "Intentional Abortion from the Sunni Perspective," p. 386.</ref> | ||
Most contemporary Sunni jurists, despite accepting the prohibition of intentional abortion after the ensoulment of the soul, believe that if it is proven by medical science that the birth of the fetus will cause the mother's death, not only is abortion permissible, but according to some of them, like [[Yusuf al-Qaradawi]], abortion becomes obligatory.<ref>Qamashi, "Intentional Abortion from the Sunni Perspective," p. 380.</ref> | Most contemporary Sunni jurists, despite accepting the prohibition of intentional abortion after the ensoulment of the soul, believe that if it is proven by medical science that the birth of the fetus will cause the mother's death, not only is abortion permissible, but according to some of them, like [[Yusuf al-Qaradawi]], abortion becomes obligatory.<ref>Qamashi, "Intentional Abortion from the Sunni Perspective," p. 380.</ref> | ||